S. C. AGRAWAL, J. - (1.) THIS is defendant's second appeal rising out of a suit for mandatory injunction filed by the respondent against the appellants. The said suit was decreed by the Munsiff and Judicial Magistrate First Class, Bundi by his judgment and decree dated 28th February, 1983. The appeal filed by the appellant against the said judgment and decree was dismissed as being barred by limitation, by the Civil Judge-cum-Chief Judicial Magistrate, Bundi vide his judgment dated 29th March, 1984. Feeling aggrieved by the said judg-ment and decree of the Civil Judge, the appellants have filed this second appeal.
(2.) BEFORE I proceed to deal with the merits, I may consider the preliminary objection that has been raised by the learned counsel for. the respondent that this appeal is barred by limitation. It may be stated that the appellants have filed an application under section 5 of the Limitation Act for condonation of delay in filing of this appeal. The facts relevant for the purpose of considering this objection are, briefly, as under: - This second appeal was filed by the appellants before this Court on 29th May, 1984. Along with the appeal, the appellants filed the certified copy of the judgment of the Civil Judge, Bundi as well as the certified copies of the judg-ment and decree of the Munsiff, Bundi. The certified copy of the decree of the Civil Judge was, however, not filed along with the memorandum of appeal. The Office raised an objection that the certified copy of the decree dated 29th March 1984 of Civil Judge, Bundi has not been filed and that the limitation would be calculated after filing of the same. The certified copy of the decree of the Civil Judge, Bundi dated 29th March, 1984 was submitted by the appellants on 27th September, 1984. Thereafter the office did not submit any report with regard to limitation in the matter of filing of the second appeal and the matter was placed for admission before the court on 19th December, 1984 and the appeal was admitted and notices were directed to be issued to the respondent. At the time of hearing of the appeal, an objection was raised by the learned counsel for the respondent that the appeal, was barred by limitation and thereafter the appellants filed the application on 16th December, 1987 under section 5 of the Limitation Act for condoning the delay in the filing of the appeal. The said application has been opposed by the respondent who has filed reply to the same. In the application under section 5 for condonation of delay, the appellants have submitted that the second appeal was filed on 23rd May, 1984 along with the certified copies of the judgments of both the courts below and the decree of the Munsiff& Judicial Magistrate, Bundi under the impression that the appellant No. 2 might have applied for the copy of the decree of the first appellate court along with the judgment of the first appellate court and the same was not given to him. In this regard it is also stated that appellant No. 2 had instructed Shiv Nandan, the clerk of the counsel for the appellants in the lower court, for obtaining the copy of the judgment and decree on the next day after the pronouncement of the judgment but by inadvertence the clerk Of the counsel in the lower court applied for the copy of the judgment only. It is further stated that this fact came to the notice of appellant-No. 2 on 31st August, 1984 and that appellant No. 2 himself gave an application for obtaining the copy of the decs of the first appellate court and the said copy was received by him on 10th September, 1984 and the same was sent to Jaipur and it was filed before this Court on 27th September, 1984. It has been further stated in the application that appellant No. 2 remained under bona fide impression that Shri Shiv Nandan, clerk of the counsel for the appellants in lower court, has applied for the copy of the decree and the same has not been received by him and in these circumstances the appellant No. 2 filed the appeal on 23rd May, 1984 in view of the summer vacations, which were to commence soon, without the copy of the decree and when the copy of the decree was received by the counsel for the appellants before this Court, the same was filed on 27th September, 1984 and that the delay has been caused on account of bonafide mistake of Shri Shiv Nandan, the clerk of the counsel of the appellant in the lower court. The application is supported by the affidavit of Radhey Shyam, appellant No. 2. Shri Asopa, the learned counsel for the appellants has invited my attention to the decision of the Supreme Court in Collector, Land Acquisition, Anantnag vs. Mst. Katiji (1), wherein the Supreme Court has observed that the court should adopt liberal approach in the matter of condonation of delay and has given the following reasons in adopting such an approach:- "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "every day's delay must be explained", does not mean that a pedentic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are citted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. " 6. Shri Jain, the learned counsel for the respondents has, however, submitted that this is not a fit case in which the delay in filing of the second appeal should be condoned. In this regard the submission of the learned counsel is that no affidavit of Shiv Nandan has been filed in support of the application. It has also been urged that even though according to the appellants, the certified copy of the decree was obtained on 10th Sept. 1984, the same was filed in this Court on 27th Sept. 1984 i. e. after 17 days and there is no explanation for this delay. Shri Jain has placed reliance on the decision of the Supreme Court in G. Rame-gowda, Major vs. Special Land Acquisition Officer, Bangalore (2 ). In the said decision the Supreme Court has held that there is no general principle saving the party from all mistakes of its counsel. . In that case it has further been held that the expression "sufficient cause" in section 5 of the Limitation Act must receive liberal construction so as to advance substantial justice and generally delay in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is impu-table to the party seeking condonation of delay.
(3.) IT would thus appear that the decision in G. Ramegowda, Major vs. Special Land Acquisition Officer, Bangalore (supra ). on which reliance has been placed by the learned counsel for the respondent, also reiterates the principle earlier laid down in Collector, Land Acquisition, Anantnag vs. Mst. Katiji (1) that the courts should adopt a liberal approach in the matter of condonation of delay so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate action or lack of bona fides is imputable to the party seeking condonation of delay. If the facts of the present case are examined in light of principles laid down by the Supreme Court in cases referred to above, it cannot be said that the delay in riling of the certified copy of the decree of the first appellate court which has entailed the delay in filing this appeal was due to gross negligence or deliberate inaction or lack of bona fides on the part of the appellants, because from the averments contained in the application for condonation of delay, which is supported by affidavit of appellant No. 2, it appears that delay in the filing of the decree was on account of the mistake on the part of the clerk of the counsel for the appellants in the lower court in not submitting the application for obtaining the certified copy of the said decree along with the application for obtaining the certified copy of the judgment of the first appellate court and when appellant No. 2 learnt on 31st August, 1984 that the application for obtaining certified copy of the decree of the first appellate court has not been submitted by the clerk of the counsel, be submitted the application on the same day and obtained the certified copy of the decree on 10th September, 1984. It thus appears that the appellants were proceeding under bona fide impression that the clerk of their counsel in the lower court must have submitted the application for obtaining the certified copy of the decree of the first appellate court immediately after the judgment was pronounced. As regards the delay in the filing of the certified copy of the decree in the court after having obtained the same on 10th September, 1984, it cannot be said that the said delay is unduly long because the said copy of the decree was obtained from, the court at Bundi and thereafter it was sent from Bundi to Jaipur by post and after receipt of the same, it was filed in the court on 27th September, 1984. Taking into consideration the aforesaid facts and circumstances of the case, I consider it in the interest of justice to allow the application filed under sec. 5 of the Limitation Act and condone the delay in the filing of this appeal. I may now proceed to deal with the appeal on merits. As pointed out earlier, the appeal of the appellants was dismissed by the Civil Judge, Bundi by his judgment and decree dated 29th March, 1984 on the ground that it was barred by limitation. The relevant facts in this regard may be noted. The judgment and decree of the Munsiff was passed on 28th February, 1983. Application for obtaining the certified copy of the judgment was submitted on 1st March, 1983. From, the endorsement on the said certified copy of the judgment it appears that the date fixed for delivery of the copy was 18th March, 1983. The copy was ready on 18th March, 1983, the date fixed for delivery of the copy was also 18th March, 1983 and the copy was actually delivered on 24th March, 1983. The appeal was filed by the appellants before the Civil Judge, on 20th March, 1983. On 26th March, 1983 the appellants submitted the application for obtaining the certified copy of the decree of the Munsiff. The date fixed for the delivery of the said copy was 30th March, 1983, but the certified copy was ready on 7th April, 1983 and it was delivered on 7th April, 1983. The said certified copy of the decree was filed in the court of Civil Judge, Bundi on 9th April, 1983. ;